USCA11 Case: 21-11014 Date Filed: 07/14/2022 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11014
Non-Argument Calendar
____________________
MARK W. BENOIT,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:17-cv-02005-GKS-DCI
____________________
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2 Opinion of the Court 21-11014
Before WILSON, JORDAN, and NEWSOM, Circuit Judges.
PER CURIAM:
Mark Benoit, proceeding pro se, appeals the district court’s
denial of his Rule 59(e) motion to alter or amend an order denying
his motion to amend his habeas corpus petition. On appeal, Mr.
Benoit concedes that the substantive claim is unexhausted and un-
timely. He also does not argue that the district court erred when it
denied his motion to amend. Instead, he asserts that the district
court abused its discretion by failing to exercise equitable discretion
to hear his constitutional claim—one he raised for the first time in
his Rule 59(e) motion—because a manifest miscarriage of justice
was apparent on the face of the record. Because Rule 59(e) cannot
be used to assert arguments that could have been raised before the
entry of judgment, we affirm.1
I
A Florida jury convicted Mr. Benoit of two counts of sexual
battery of a child by a person in familial or custodial authority over
that child, three counts of lewd or lascivious molestation, and one
count of lewd or lascivious exhibition. The state court sentenced
Mr. Benoit to twenty-five-year terms of imprisonment on all
counts, with the sentence for one of the molestation counts—
1 We assume the parties’ familiarity with the facts and procedural history and
set out only what is necessary to explain our decision. As to issues not dis-
cussed, we summarily affirm.
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21-11014 Opinion of the Court 3
Count Three—to run consecutive to the other sentences. Signifi-
cantly, Count Three alleged that Mr. Benoit unlawfully engaged in
sexual activity with a child, specifically by sexual penetration.
When answering the special interrogatories to Count Three, how-
ever, the jury declined to find that sexual penetration had occurred.
Instead, the jury found that sexual contact or “union” had oc-
curred.
After conviction and sentencing, Mr. Benoit filed a direct ap-
peal, motions for post-conviction relief, and a state habeas corpus
petition raising a myriad of claims and theories, none of which are
relevant to the instant appeal. All were unsuccessful.
In November of 2017, Mr. Benoit filed a
28 U.S.C. § 2254
petition, raising three grounds for relief. As relevant here, in
Ground One, Mr. Benoit argued that he was convicted of crimes
not contained in the Information because the trial court’s instruc-
tions to the jury allowed it to convict him of offenses that occurred
prior to April 29, 2009, whereas the Information charged offenses
occurring only between April 29, 2009 and June 29, 2009. The state
responded to Mr. Benoit’s petition, urging the district court to dis-
miss it or deny it with prejudice.
Mr. Benoit replied, requesting that the district court grant
him leave to amend Ground One of his habeas petition. In partic-
ular, Mr. Benoit sought to amend his petition to argue—for the first
time—that he was convicted of a crime not charged in the Infor-
mation because the jury did not find that the state established that
“penetration” had occurred with respect to the events underlying
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4 Opinion of the Court 21-11014
the charge for Count Three. Rather, the jury only found “union,”
which does not suffice to support the charge of conviction. The
state responded, arguing, among other things, that Mr. Benoit’s
new legal theory was both unexhausted and untimely.
Mr. Benoit replied that his proposed amendment related
back to Ground One because his claim was the same—that he was
convicted of a charge not contained in the Information. He said
that he sought an amendment only to clarify the issues related to
that claim and to cure any pleading defects.
The district court denied Mr. Benoit’s petition and his mo-
tion to amend. Regarding the motion to amend, the district court
found that: (1) Mr. Benoit had until December 7, 2017, to file a
federal habeas corpus petition; (2) his motion to amend, filed on
August 9, 2018, was untimely; (3) his proposed amendment did not
relate back to Ground One of his habeas petition; and (4) he had
never raised his new claim in state court.
Mr. Benoit then filed a Rule 59(e) motion requesting that the
district court reconsider the portion of its order denying his request
to amend Ground One of his habeas petition. In an attached mem-
orandum, Mr. Benoit raised yet another novel claim, asserting for
the first time that he was “actually (factually) innocent” of the
crime for which he was convicted in Count Three of the Infor-
mation, which constituted a miscarriage of justice. As such, he
could overcome the procedural bars that applied to his motion for
leave to amend.
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21-11014 Opinion of the Court 5
The district court concluded that the record supported
Mr. Benoit’s new theory that the jury found him guilty of union
(not penetration) and that sexual battery could not be established
by a digital union under Florida law. Nevertheless, the district
court denied Mr. Benoit’s motion, finding that Mr. Benoit was rais-
ing arguments that could have been presented before the entry of
judgment and could not use Rule 59(e) to relitigate the merits of
his motion to amend. The district court explained that Mr. Benoit
had never argued (1) that he was legally innocent of Count Three
in state court; and (2) that he was actually innocent of Count Three
in state or federal court prior to the filing of his motion for recon-
sideration. Mr. Benoit timely appealed.
II
We review the denial of a Rule 59(e) motion for abuse of
discretion. See Jackson v. Crosby,
437 F.3d 1290, 1295 (11th Cir.
2006); Mincey v. Head,
205 F.3d 1106, 1137 (11th Cir. 2000). When
reviewing for an abuse of discretion, we generally affirm unless the
district court applied an incorrect legal standard, made findings of
fact that were clearly erroneous, or committed a clear error of judg-
ment. See Mincey, 206 F.3d at 1137.
A
On appeal, Mr. Benoit concedes that his factual/actual inno-
cence argument was unexhausted and untimely. And he does not
argue that the district court erred when it ruled that the proposed
amendment to his habeas petition—claiming that he was convicted
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6 Opinion of the Court 21-11014
of a charge not included in the indictment because the jury found
union and not sexual penetration—did not relate back to Ground
One of the petition. As a result, that argument is abandoned. See
Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678, 680 (11th Cir.
2014) (holding that an appellant is “deemed to have abandoned” an
argument when he “fails to challenge properly on appeal one of the
grounds on which the district court based its judgment”). All that
remains, then, is Mr. Benoit’s argument that the district court
abused its discretion when it denied his Rule 59(e) motion by (1)
improperly applying the standard for evaluating Rule 59(e) mo-
tions; and (2) failing to recognize it had equitable discretion to hear
his procedurally defaulted actual/factual innocence claim because
a manifest miscarriage of justice was apparent on the face of the
record.
B
Rule 59(e) allows a litigant to file a motion to alter or amend
within 28 days from the entry of the judgment. See Banister v. Da-
vis,
140 S.Ct. 1698, 1703 (2020). The grounds for granting a Rule
59(e) motion are newly discovered evidence or manifest errors of
law or fact. See Arthur v. King,
500 F.3d 1335, 1343 (11th Cir. 2007)
(quoting In re Kellogg,
197 F.3d 1116, 1119 (11th Cir. 1999)) (inter-
nal quotation marks omitted). A Rule 59(e) motion cannot be used
to relitigate old matters, raise new arguments, or present evidence
that could have been raised prior to the entry of judgment. See
Arthur,
500 F.3d at 1343 (quoting Michael Linet, Inc. v. Village of
Wellington, Fla.,
408 F.3d 757, 763 (11th Cir. 2005)).
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21-11014 Opinion of the Court 7
In Arthur, a death row inmate filed a Rule 59(e) motion to
alter or amend a judgment dismissing his § 1983 complaint. See
500 F.3d at 1340. In that motion, the inmate argued that the district
court should amend its dismissal order because a new affidavit
from a witness provided evidence of his innocence. See
id. at 1342.
The district court discredited that affidavit because it was unsworn
and incredible and denied the inmate’s motion. See
id. On appeal,
we held that the inmate could not show that the district court
abused its discretion, not only because the affidavit was properly
discredited, but also because it could not be considered “newly dis-
covered” evidence. See
id. at 1343 (holding the affidavit “could
have been discovered during the five years after [the witness] had
repudiated his first affidavit, and filed with the complaint.”). In
other words, we ruled that the district court properly denied the
Rule 59(e) motion because the inmate did not point to any newly
discovered evidence or any manifest errors of law or fact. See
id.
Here, Mr. Benoit attempted to raise a new legal argument
in his Rule 59(e) motion—that he is “factually (actually) innocent”
of Count Three—after the district court had already denied his mo-
tion to amend his habeas petition with a separate claim as untimely
and procedurally barred. His new claim of factual/actual inno-
cence was not based on the discovery of any new evidence. As Mr.
Benoit points out himself, the facts underpinning his new fac-
tual/actual innocence claim were already in the record when he
filed his direct appeal, his state habeas petition, and his state post-
conviction motion. Nor does Mr. Benoit claim that the district
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8 Opinion of the Court 21-11014
court’s decision to deny his motion to alter or amend involved
manifest errors of law or fact.
Instead, Mr. Benoit argues that the district court should have
allowed him to use a Rule 59(e) motion for the exact aim we have
sought to restrain: to raise new arguments or theories that could
have been presented prior to the entry of judgment. See Arthur,
500 F.3d at 1343. It seems, in fact, that Mr. Benoit sought only to
invoke his actual/factual innocence theory once the district court
had already rejected his motion to amend, precisely (or at least in
part) because he had failed to argue that he was actually innocent
of his conviction for Count Three.
Mr. Benoit has failed to meaningfully explain why he never
raised this factual/actual innocence theory at any junction prior to
his motion for reconsideration. Rule 59(e) is not a vehicle through
which litigants may take a proverbial second bite of the apple. That
is particularly so where, as here, the “evidence” relied upon is not
newly discovered. See
id. See also Fults v. GDCP Warden,
764
F.3d 1311, 1318 (11th Cir. 2014) (holding that petitioner’s funda-
mental miscarriage of justice claim, raised for the first time on a
motion for reconsideration, could not cure procedural defects). As
such, the district court did not abuse its discretion when it denied
Mr. Benoit’s Rule 59(e) motion.
III
The district court’s order is AFFIRMED.
